Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

EVENTS

The Obama Administration’s Targeted Killing Memo

It appears the Obama administration has another whistleblower to prosecute after someone leaked a memo to NBC’s Michael Isikoff that provides a partial justification for President Obama’s claimed — and practiced — authority to order the assassination of American citizens. The reaction from civil libertarians is what one might expect, and accurate as well. You can read the memo here (PDF). Greenwald points out something very important:

In fact, The Most Transparent Administration Ever™ has been so fixated on secrecy that they have refused even to disclose the legal memoranda prepared by Obama lawyers setting forth their legal rationale for why the president has this power. During the Bush years, when Bush refused to disclose the memoranda from his Office of Legal Counsel (OLC) that legally authorized torture, rendition, warrantless eavesdropping and the like, leading Democratic lawyers such as Dawn Johnsen (Obama’s first choice to lead the OLC) vehemently denounced this practice as a grave threat, warning that “the Bush Administration’s excessive reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the [OLC] upsets the system of checks and balances between the executive and legislative branches of government.”

But when it comes to Obama’s assassination power, this is exactly what his administration has done. It has repeatedly refused to disclose the principal legal memoranda prepared by Obama OLC lawyers that justified his kill list. It is, right now, vigorously resisting lawsuits from the New York Times and the ACLU to obtain that OLC memorandum. In sum, Obama not only claims he has the power to order US citizens killed with no transparency, but that even the documents explaining the legal rationale for this power are to be concealed. He’s maintaining secret law on the most extremist power he can assert…

But of course, when this memo refers to “a Senior Operational Leader of al-Qaida”, what it actually means is this: someone whom the President – in total secrecy and with no due process – has accused of being that. Indeed, the memo itself makes this clear, as it baldly states that presidential assassinations are justified when “an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the US”.

This is the crucial point: the memo isn’t justifying the due-process-free execution of senior al-Qaida leaders who pose an imminent threat to the US. It is justifying the due-process-free execution of peoplesecretly accused by the president and his underlings, with no due process, of being that. The distinction between (a) government accusations and (b) proof of guilt is central to every free society, by definition, yet this memo – and those who defend Obama’s assassination power – willfully ignore it.

Those who justify all of this by arguing that Obama can and should kill al-Qaida leaders who are trying to kill Americans are engaged in supreme question-begging. Without any due process, transparency or oversight, there is no way to know who is a “senior al-Qaida leader” and who is posing an “imminent threat” to Americans. All that can be known is who Obama, in total secrecy, accuses of this.

Conor Friedersdorf focuses on another important question, the definition of “imminent,” and wonders why this document wasn’t released to the public long ago:

On reading the unredacted document, ask yourself, why wasn’t this released to the public by the Obama Administration? Which part of its legal reasoning could jeopardize national security in any way? Since it reveals no national-security secrets, what possible justification could there be for willfully keeping its contents from Americans, who have a compelling interest in understanding, scrutinizing and debating the legal framework that surrounds extrajudicial killing?…

But the part of the memo worth dwelling on most, at least until legal experts offer deeper analysis than I confidently can, is the portion that deals with “an imminent threat of violent attack.”

On reading the document, that clause is sort of reassuring. After all, there aren’t that many circumstances when an attack is imminent. It would seem to severely constrain extrajudicial assassinations.

As it turns out, however, the memo reassures the reader with the rhetorically powerful word “imminent,” only to define imminence down in a way that makes it largely meaningless — so much so that it’s actually reminiscent of George W. Bush’s misuse of imminent to characterize the threat posed by Iraq. It’s difficult to adequately emphasize how absurd this part of the document becomes. What does it mean, for you personally, when you hear that someone poses “an imminent threat of violent attack against the United States”? Do you have an answer in your head?

I certainly do. An “imminent” attack on the United States is one that is going to happen, in short order, unless we stop it. Now here is the passage he refers to in the memo:

Certain aspects of this legal framework require additional explication. First, the condition that an operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future.

So in order to qualify as an “imminent attack” under the terms of this memo, it need not be imminent at all. Very convenient. Adam Serwer nails it in one succinct sentence:

The government needs the approval of a judge to detain a suspected terrorist. To kill one, it need only give itself permission.

This is exactly the sort of thing that liberals were outraged at when practiced by the Bush administration and we should be equally outraged now. Thankfully, some still are. But not the ones with any power and influence, like most Democratic legislators. Ron Wyden is one of the few who gives a damn.

Comments

Most progressives I know have been outraged at this kind of stuff from day one. From both the Bush and Obama administrations. And few people in the progressive wings of the Democratic party had any illusions about Obama. Or Hillary.

The problem is that most governments, once they gain the power to do something, rarely give it up. And it’s why SCOTUS appointments are important. Note that the Bush nominees were largely people of authoritarian bent. Well, we’re stuck with them now and they aren’t likely to hear a challenge to the President’s authority to do this, though the Constitutional grounds are pretty clear.

There’s also the issue of politics. That is, I certainly think Romney would have embraced this power as eagerly as Obama does. It isn’t like the GOP stood up and said, as part of the campaign, that Romney would end extrajudicial process. And on so many other issues he was terrible. So, who do you vote for? Given the structure of the system in the US you’re kind of stuck, especially if you live in a “swing” state and don’t want Michele Bachmann running some important agency. I would love to be principled all the time. But I can’t be when it comes to voting, anyway. If you’re upset that people still voted for Obama in the face of this, I’d ask what choice people had. Dennis Kucinich wasn’t on the ballot.

But that’s a somewhat deeper political question there. Either way, I think it is vital to hold the Obama administration’s feet to the fire on this, though I am unsure of what’s possible. It isn’t like he has to worry about getting re-elected. And the Democratic leadership so thoroughly purged its left wing that there was no chance of any critique coming from there.

This differs, by the way, from the local parties, sometimes by a lot. To give one example: when Joe Lieberman lost his primary to a mildly more liberal Democrat, the Party decided to essentially not support the Democrat (Lamont), who ended up narrowly losing. In fact some actively campaigned against Lamont. They also made it known that, for example, when Kucinich was redistricted out of his seat, that there was going to be no support for a run at the district occupied by a more conservative Democrat. The more liberal candidates who won in 2008 did so in spite of the Dem leadership, not because of it.

Chuck Schumer has a lot to answer for here. Anyhow, that’s a slightly different issue.

. . . the memo isn’t justifying the due-process-free execution of senior al-Qaida leaders who pose an imminent threat to the US. It is justifying the due-process-free execution of peoplesecretly accused by the president and his underlings, with no due process, of being that.

I think this is a fallacy of false alternatives. The reality we have to consider here is we have stateless actors we engage with militarily, where we also extend the power of the intelligence community beyond what it was once. Neither our criminal due process laws, nor our military regulations are good fits when it comes to dealing with these very real security threats. We don’t constrain our military resources by first having to legally prove culpability through a check and balance due process where the reaction time the military requires is often even more paramount when it comes to dealing with the terrorists given their superior ability to hide.

I assert above that, “I think it is a fallacy . . .”, because there is a legitimate argument to be made we should only engage with such threats through our legal system. If so have at it; but I’ve yet to see such an argument sufficiently deal with the reality of the threat. Therefore I support a complex approach with a new process which meets the threat on its own terms in terms of timing while creating checks and balance between the three federal powers.

This is exactly the sort of thing that liberals were outraged at when practiced by the Bush administration and we should be equally outraged now.

It’s not exactly the same thing. There is an enormous difference between torture and killing the enemy. On the latter we used to be able to distinguish suspected criminals from threats we dealt with by way our military, where each had its own rules and where the military didn’t require the type of process and proof we demanded of our criminal courts to use deadly force. In today’s world those two areas don’t cover all the possibilities.

So we need new processes, where needing new processes as we engage with a very real threat, including killing them, is very different from torturing detainees or denying those detainees the due process we’ve always afforded regardless of whether we engaged those detainees by either force of law or militarily.

I wonder about the politics of this — spefically, whether we might see an unheard-of alliance between the far right and far left against the centrist pro-war groups of both parties. The left wing doesn’t like this policy because of all the reasons Ed gives above, while the right wing won’t like it because, well, it’s Obama.

On reading the unredacted document, ask yourself, why wasn’t this released to the public by the Obama Administration?

I’m not convinced it wasn’t. The timing strikes me as convenient, coming as it did just ahead of Brennan’s confirmation hearing. Perhaps this was a preemptive strike (no pun intended) by the Administration. There seems to be little political risk in doing so. It’s not as if the public is up in arms about targeted killings. We’re more concerned about the ongoing exploits of Honey Boo Boo or the next American Idol contestant than we are over the Executive’s claimed authority to kill citizens without process.

This, in my view, is part and parcel of one of the two or three most compelling issues we face: what is war, and what kinds of authority are we willing to hand over to our political officials in time of war? It seems clear to me that today’s notion of “war” isn’t the same as what it was thirty or forty years ago, when I was a kid and a young adult. The political utility of war has outstripped our former aversion to it, at least as we seem to be fighting it now. That, perhaps, is part of the problem. The wars we fight now don’t impose many burdens on us, as wars historically have.

For those who might be interested, scholar Mary Dudziak is doing important work on this topic, along with others. You can follow along with her work over at the Balkanization blog, which Ed has linked in the sidebar.

@ Michael Heath:You have a cogent view of the overall legal quagmire with a conflict against non-state actors, however this fails to fully recognize the problem with transparency. We simply don’t know what our government is doing, supposedly in our name and without our consent. This lack of information and consent is the more pernicious threat to our republic than quasi-legal twisted interpretations of constitutional powers.

Another problem is the legal checks and balances on the authorities who carry out these acts. The military has constraints on their acts from the Geneva Conventions and Congressional actions, but when it comes to the CIA, the legal situation becomes more murky. Some of the drone strikes seem to be clearly done by theAir Force, but wat are the constraints on Special Ops and the CIA?

I’m with you all in thinking the whole power is illegal and alarming. But while we’re exercising our minds about the details…

An “imminent” attack on the United States is one that is going to happen, in short order, unless we stop it.

I’d further narrow ‘in short order’ to be: must be expected to occur in a time shorter than the average time needed to get a warrant from the FISC. Because really, that would be the only even minimally legitimate reason the executive would need a power to go around them.

So, probably something like a few hours during the day, maybe 8 hours if you find out about the ‘imminent’ attack after 6pm or on a weekend.

I’m hearing (reading) a lot of hue and cry about the claimed Presidential right to assassinate American citizens, but the much-exercised practice of assassinating people who are not American citizens, including large numbers of innocent bystanders, barely gets a yawn in the American press. Is this another form of American exceptionalism?

Um, doesn’t this mean that Obama himself “poses an imminent threat of violent attack against the US”? Did he mistakenly authorize his own assassination if, say, someone in the Senate Intelligence Committee hates him? I’m not sure they thought this one through…

I’m always reminded of the incident in the early days of the Afghan intervention when the US killed some afghanis standing around a broken down pickup truck because one of them was “tall” and Osama bin Laden was supposedly “tall”. Wonder how many people signed on for jihad because of just that one incident.